In an en banc decision issued yesterday, the United States Court of Appeals for Seventh Circuit held that Title VII’s prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation. See Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 2017). In doing so, it became the first court of appeals to reach this conclusion, disagreeing with contrary decisions from multiple other circuits. While this issue could very well be taken up by the Supreme Court of the United States, any Supreme Court decision would likely not come before early 2018. Absent expedited action by the Supreme Court or a stay of the ruling, this will remain the law in the Seventh Circuit for the foreseeable future.
Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex[.]” 42 U.S.C. § 2000e-2(a)(1). As the court acknowledged in the beginning of its opinion, virtually all courts of appeals shared the Seventh Circuit’s prior view that the term “sex” as used in Title VII “implies that it is unlawful to discriminate against women because they are women and against men because they are men,” and does not speak to discrimination based on sexual orientation. Op. at 3-4. Continue Reading Seventh Circuit Holds That Title VII Prevents Sexual-Orientation Discrimination—Will More Courts Follow? And Is Title IX Next?